Press Freedom, Defamation / Reputation, Political Expression
Bodrožić v. Serbia
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In a judgment dated 12 July 2001, the European Court of Human Rights decided by five votes to two, that the Slovak Republic Supreme Court´s conviction of a publicist for a statement referring to the fascist past of the Slovak Minister of Culture and Education was a violation of Article 10 of the ECHR. The Court concluded that the Slovak Court had not convincingly established any pressing social need for protecting the personality rights of a public figure above the applicant’s right to freedom of expression and the general interest of promoting this freedom when issues of public interest are concerned.
The applicant, Mr. Lubomír Feldek, was a Slovakian poet, writer, and publicist, who later acquired Czech nationality. In July 1992, several Slovakian newspapers published a statement, which the applicant had distributed to the Public Information Service, entitled “For a better picture of Slovakia-without a fascist past”. In the publication, Mr. Feldek expressed his concern about Drusan Slobodnik’s fascist past, who at the time, was Minister for Culture and Education of the Slovak Republic. The statement was published shortly after the appointment of a new government following parliamentary elections and after adopting the declaration of Slovakia’s sovereignty. A month later, in an interview, Mr. Feldek stated: “… when I speak of the fascist past [of Mr. Slobodník], I do not characterize him, I only think that the fact that he attended a terrorist training course organized by the SS falls within the term ‘fascist past’. I consider that such a person has nothing to do in the government of a democratic State …” [para.13]. As a result, in September 1992, Mr. Slobodník sued the applicant for defamation.
In October of the same year, the Bratislava City Court dismissed the action. The City Court held that Mr. Feldek had expressed his opinion based on information which Mr. Slobodník himself had commented on through interviews both in Slovakia and abroad. Further, the City Court stated that the statement concerned a public figure who was inevitably exposed to scrutiny and sometimes also to criticism by other members of society. Therefore, the comments made by the applicant were protected by the right to freedom of expression and had not unjustifiably interfered with the plaintiff’s personality rights.
Mr. Slobodník appealed to the Supreme Court, alleging that the applicant had not proved that he had a “fascist past”, and that the City Court had not established the meaning of that term. On 23 March 1994, The Supreme Court deemed that the applicant had infringed the plaintiff’s personality rights, reversing the lower instance ruling. As a result, Mr. Feldek filed an appeal on points of law alleging a violation of his rights under Article 10 of the Convention.
On 25 May 1995, a different Chamber of the Supreme Court sitting as a Court of Cassation upheld part of the appeal judgment of the Supreme Court. The Court of Cassation did not share Mr. Feldek’s view that Mr. Slobodník should be required to prove that his allegations were untrue. It further considered the applicant’s argument that his statement was a value judgment. On this point, the court held that it could have accepted the argument if Mr. Feldek had expressly referred in his declaration to the particular facts on which such a value judgment was based. The remainder of the case was sent back to the City Court.
On 11 September 1995, Mr. Feldek lodged an application to the ECtHR, and in June 2000, the case was allocated to the Second Section of the Court.
In the present case, the main issue for the Second Section of the ECtHR to analyze was whether the interference with Mr. Feldek’s right to freedom of expression was proportionate to the legitimate aim pursued and whether the reasons given by the national courts to justify it were relevant and sufficient.
Mr. Feldek argued that the Slovakian courts violated his right to freedom of expression and thought by declaring his statement defamatory. He also complained that he had been discriminated against for his political opinion. He relied on Articles 9, 10, and 41 of the ECHR. The applicant maintained that the interference had not been “necessary in the democratic society” given that the domestic courts had failed to respect the principle of proportionality in light of the restriction of his right to freedom of expression.
The State disagreed and maintained that the interference was prescribed by law, specifically Article 11 of the Slovakian Civil Code. Additionally, the State argued that the interference was proportionate to the legitimate aim pursued and that the reasons adduced by the domestic courts were sufficient and relevant. “In their view, labeling a politician as a person with a fascist past could seriously impact the reputation of the person concerned” [para. 64].
The ECtHR started the analysis of the case by stating that the test of “necessity in a democratic society” required the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient. When assessing whether such a “need” exists and what measures should be adopted to deal with it, the Court emphasized that the national authorities are left with a certain margin of appreciation.
First, the ECtHR held that since the interference complained had a legal basis under Articles 11 and 13 of the Slovakian Civil Code, the interference was “prescribed by law” within the meaning of Article 10 ( 2) of the Convention. The Court found that the Slovakian court’s decision was consistent with the legitimate aim of protecting the personality rights of the plaintiff, who considered himself affected by the applicant’s statement.
To determine the necessity of the interference, the Court distinguished between statements of facts and value judgments. According to the Court, facts can be demonstrated, whereas value judgments are not susceptible to proof. Further, the Court stressed that the requirement to prove the truth of a value judgment is an impossible task to fulfill and infringes freedom of opinion itself. The Court referred to its case of De Haes and Gijsels v. Belgium App. No. 19983/92 (February 24, 1997) to highlight that “the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive” [para. 76].
The Court found that the applicant’s statement was a value judgment, hence its truthfulness was not susceptible of proof. The Court noted that the applicant’s declarations were made and published as part of a political debate on matters of general and public concern relating to the history of Slovakia, which could potentially have repercussions on its future democratic development. Moreover, the Court held that the value judgment made by the applicant was based on information previously published by Mr. Slobodník himself and by the press before the publication of the applicant’s statement; hence, it was already known to the broader public.
Additionally, the ECtHR considered that the Court of Cassation had not convincingly established any pressing social need to protect a public figure’s rights above the applicant’s right to freedom of expression. In particular, the ECtHR held that the domestic courts’ decisions did not reflect that the applicant’s statement had affected Mr. Slobodník’s political career or his professional and private life. Therefore, the Court determined that the national authorities failed to strike a fair balance between the relevant interests. As a result, the ECtHR concluded that the interference of Mr. Feldek’s right to freedom of expression was not “necessary in a democratic society” within the meaning of Article 10 (2 ) and, thus, held that there had been a violation of Article 10.
Regarding the applicant’s claim that his right to freedom of thought had been violated, the Court deemed that the impugned measure constituted an interference with the applicant’s exercise of his freedom of expression and that no separate issue arised concerning Article 9. Regarding the applicant’s claim that he had been discriminated against based on his political opinion, the Court found no indication that the measure complained of could be attributed to a difference in treatment based on the applicant’s political opinion. Thus, the Court concluded that there had been no violation of Article 14 of the Convention.
Finally, based on Article 41 of the ECHR, the Court awarded Mr. Feldek 65,000 Slovakian korunas (‘SKK’) for non-pecuniary damage and SKK 500,000 for legal costs and expenses.
Dissenting Opinions of Justice Fischbach and Justice Lorenzen:
Judges Fischbach and Lorenzen presented a dissenting opinion in which they regarded the domestic courts had applied their discretion based on a proper assessment of the facts. While value judgment of a journalist is important in a democratic society, it is necessary to provide circumstances or context for the information to avoid readers from gaining a wrong impression. According to them, the applicant’s statements exceeded the wide limits of criticism that the Court has allowed for political figures since the term ‘fascist past’ insinuated that the statement was based on information not already disclosed by Mr Slobodník. Further, they considered that there was no indication that the applicant was deprived of an effective opportunity to adduce evidence supporting his statement and the national courts based their decision on a reasonable assessment of facts. Hence, they believed that the standards applied were compatible with the principles embodied in Article 10 of the ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ECtHR decision expands freedom of expression by emphasizing that the promotion of free political debate is an essential feature in a democratic society. Unlike factual statements, value judgments expressed by journalists are not susceptible to proof and as matter of public interest, could contribute to democratic development.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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